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Knox illustrates
both how the current majority goes out of its way to favor big business, a
theme of our most recent First Monday documentary, Unequal
Justice, and also the extreme judicial activism of the court’s extreme
right – another
issue we’ve followed closely.

Greenhouse also cites Prof. Benjamin Sachs who, on
this Blog and elsewhere, has argued that, in a post-Citizens United world, the majority’s view gives unions notably
less “free speech” than corporations.

As Greenhouse points out, the issue in Knox was narrow and seemingly arcane—whether workers who were not
members of the union had been given adequate opportunity to “opt out” of one
particular “special assessment” to be used for some political activity.

But the right-wing majority, led by Justice Samuel Alito,
seized upon the opportunity to go far beyond this narrow issue. They questioned whether unions have a right
to require non-members to affirmatively “opt out” of any use of their dues for
political activity. They even questioned
whether unions have a right to charge dues for non-members at all, even though
those non-members, of course, receive all the benefits of collective bargaining
agreements.

Greenhouse calls it “flagrant activism.” She writes:

In his opinion,
Justice Alito denied going beyond the confines of the question the parties
brought to the court, but Justice Sonia Sotomayor shredded his defensive
assertion in a separate opinion. Joined by Justice Ruth Bader Ginsburg, Justice
Sotomayor said the case, as presented, provided no occasion for the majority’s
attack on the opt-out rule, let alone its expressions of skepticism about the
constitutionality of the agency shop. … Justice Sotomayor said: “To cast serious doubt
on longstanding precedent is a step we historically take only with the greatest
caution and reticence. To do so, as the majority does, on our own invitation
and without adversarial presentation is both unfair and unwise.”

Justice Breyer,
joined in his dissenting opinion by Justice Kagan, noted that “the debate about
public unions’ collective-bargaining rights is currently intense.” He added,
“There is no good reason for the court suddenly to enter the debate, much less
now to decide that the Constitution resolves it.”